By Jamie Bryson
The PSNI response is being coordinated by ACC Alan Todd, who appears to consistently find himself down a rabbit hole on contentious issues.
Despite being alerted to the fact the PSNI’s interpretation of the regulations were entirely wrong and had no basis in law, ACC Todd refused to listen and instead ploughed ahead with more and more ridiculous efforts to justify the PSNI’s approach to the Covid-19 emergency legislation.
It seems that what started as a misguided but noble intent has, almost as a matter of sheer stubbornness, turned into a stand-off over the criminal law. ACC Todd just refuses to put the shovel down. Even after it was outlined to him in clear terms that his interpretation of the legislation was fatally flawed, he refused to countenance that he was wrong.
ACC Todd justified his position by saying that it was based on legal advice. The PSNI have introduced this into the public discourse, therefore it is fair to ask whether they are prepared to reveal this legal advice or who they received it from?
Legal Advice is privileged based upon the receiver of the advice, not the person giving the advice. If the person receiving the legal advice wishes to waive legal privilege and publish the advice then they are entitled to do so. Why can the PSNI not waive privilege and reveal their legal advice and allow the public to judge for themselves?
It is likely their legal services branch had an input, in which case it is no surprise they have got it so badly wrong. That branch of the PSNI has hop-scotched from one calamity to another; incredibly in 2018 it was exposed on this website that they had been issuing notices of rights to citizens quoting legislation which did not exist. Rather than swiftly correct this error, they simply instructed officers to ‘score out’ their error and correct it by hand. Quite astonishing.
Whoever provided the legal advice guiding ACC Todd, presumably procured with tax-payers money, should be relieved of their duties. In no other organisation or business would such a monumental error be tolerated. This isn’t a case whereby there is an arguable legal point either way; its so clear it is elementary.
The PSNI introduced a necessity test into the Covid-19 Regulations where none exists. The test for leaving your home is whether you have a reasonable excuse. The reasonable excuses are listed (non-exhaustively) at Regulation 5 (2). That is the test; if you leave your home in furtherance of a reasonable excuse then the test is satisfied and there is no further consideration required.
The PSNI started by saying exercise started and ended at your front door. I publicly challenged PSNI Carrickfergus on that; they swiftly deleted their Facebook post. However, ACC Todd then decided (in course of apologising for PSNI Carrickfergus) that he would create yet another test and state that people could travel “modest” journeys to exercise.
This is quite simply made up; it has no basis in law. In any event, who defines “modest”? Where is the statutory basis for this approach?
There is absolutely nothing in the law to prevent anyone travelling to exercise, or indeed in furtherance of any of the reasonable excuses outlined at Regulation 5 (2). If we followed ACC Todd’s logic then you would be prohibited from travelling to a shop for essentials if you could walk to one. The absurdity of that speaks for itself.
We then had the publication of a ridiculous graphic by the PSNI communications which created yet another interpretation which has no basis in law. The PSNI listed reasons for which you can leave home, and then separately reasons for which you can travel, as if the two are separate legislative categories. Where is this in law? Again, they literally just made that up.
The Northern Ireland Executive hasn’t helped matters either. The PSNI say the Executive support their interpretation, yet this is flatly contradicted by virtue of the public commentary of Executive Ministers who provide a varying range of analysis on how far the regulations go. Indeed, in some instances Executive Ministers have themselves began introducing regulations that do not exist in law.
To take one example Michelle O’Neil stated you could only exercise once per day. Where is that in the regulations? She has gone even further than the PSNI.
We then turn to the PSNI’s online portal, set up it seems to provide curtain twitching busybodies the opportunity to act the school prefect and inform on their neighbours if they suspect they have breached social distancing guidelines.
And here is the root of the problem- if someone breaches social distancing guidelines, what has that got to do with the PSNI?
The PSNI’s job is to enforce the law, not guidelines or policy, and if one is not prohibited by the criminal law of carrying out a particular act, then it is really none of the PSNI’s business. The only breaches the PSNI can act upon are those activities prohibited by the Regulations.
Yet despite this the PSNI have set themselves up a shiny online portal and have been arriving at people’s houses to warn them about all sorts of issues, including travelling to exercise. Some of the accounts I have heard from a broad range of people are quite simply shocking.
This raises another issue. The PSNI Code of Ethics Article 2.1 states:
“2.1 Police investigations shall, as a minimum, be based upon reasonable suspicion of an actual or possible offence or crime. They shall be conducted in a prompt, thorough, impartial and careful manner so as to ensure accountability and responsibility in accordance with the law.”
When the police receive a report through their portal, clearly acting upon it is an ‘investigation’ and as such triggers Article 2.1 of the PSNI Code of Ethics. The problem for the PSNI is that often much of what they are ‘investigating’, such as travelling to exercise, is not an actual or possible crime or offence. Therefore, it is impossible that the bare minimum requirement, namely a reasonable suspicion of an actual or possible crime, cannot logically be satisfied. The PSNI are operating in breach of their own Code of Ethics.
It was revealed on Thursday that ACC Todd had now sent out a memo placing a hold- for 48 hours for whatever reason- on issuing fines without silver command approval. The beginning of what is going to be a long retreat I would imagine.
We all support sensible, reasonable and proportionate regulations to save lives but many people are beginning to feel that things are getting a little out of hand and the infringement on our liberties is becoming a little too normalised.
If we are to seriously sit back and permit police to make up laws that do not exist, and all clap along because it is the populist thing to do, then we are heading down a very dangerous path.
It is the easiest thing in the world to take the Sinn Fein approach, supported of course by their usual cabal of de facto freelance press officers, of hysterically shouting “lock everything down” and saying that anyone looking for a safe route out of the lockdown is risking lives. That’s populist grandstanding for political advantage.
Politicians genuinely acting in the public interest have to be brave enough to say what many people are now thinking; based on the best scientific advice we need a safe path out of this lockdown, which at best case is descending into a farce and at worst case is in of itself costing lives and inflicting untold damage on the mental health of many people.